Juma Mnyika Lwiga v Republic

ii. That the learned trial magistrate erred in law and fact by relying on the evidence of the prosecution which was unreliable, contradicting and full of glaring inconsistency. iii. That the learned trial magistrate erred in law and fact by failing to consider that the ingredients of the charge were not proved beyond reasonable doubt. iv. That the learned trial magistrate finally erred in the points of law by failing to exercise discretion the present case. v. That the learned trial magistrate erred in law and fact by failing to properly evaluate the entire evidence on record, particularly the inconsistencies in the complainant’s testimony on events before and after the alleged offence. vi. That the learned magistrate misdirected himself by placing undue reliance on the DNA report without examining the chain of custody and ensuring that the samples were properly handled and secured from contamination. vii. That the trial court failed to consider the Appellants defense in its entirety and did not adequately address his explanation or consider any possible motive for fabrication of the allegation by persons know to him. viii. That the trial magistrate erred in law and fact by relying on circumstantial and neighbor testimonies that were not direct eye witness accounts of the alleged defilement but mere afterreports. ix. That the sentence of 15 years’ imprisonment was harsh and excessive considering the circumstances of the case and the appellant’s status as a first offender. x. That the entire judgement was against the weight of the evidence and the trial magistrate erred in law and fact in failing to accord the appellant the benefit of doubt. Prosecution’s case 6. PW1 CK (minor) the complainant herein testified that she is a form two student at [Particulars Withheld] secondary school. She resides with her mom, two siblings and her cousin. She said that on 23/1/2023 she went to Kongowea market together with her cousin GM. They bought tomatoes and went back home. They found their mother going to school. She went to school to confirm if they had gone to school because she did not know that PW1 had not gone to school. PW1’s neighbor told PW1 that her mother was looking for her. 7. PW1 said that she left home again and went back to the market. She was not wearing uniform. She went back to meet Juma’s friend. Juma is before court. She said that Juma was her boyfriend. He used to sell clothes at Kongowea. She met Juma’s friend at the market. He was selling clothes. PW1 said that she sat there with Juma’s friend, in the evening Juma’s friend told her to go and visit Juma. They went to Sports area where Juma resides. Juma’s friend asked Juma to come and pick her at the stage at 10pm where Juma came and picked her and took her to his house. 8. PW1 testified that she went to Juma’s house where Juma forced her to have unprotected sex. He did not use a condom. On 24/1/2023 Juma went to take a bath but PW1 did not bath. Juma left her in his house and he went to the market. In the evening, they had supper and she spent the second night there. On 25/1/2023 she left Juma’s house at around 11am. She spent the third night at her friend’s (Faith) place. On 26/1/2023 she went to pastor’s house who called her mother. She then went home and her did not ask her anything. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4929/eng@2026-04-16 2

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9. She said that the following Saturday her mother took her to school the principal questioned her and she told him that she was at Juma’s house. The principal reported the matter to Nyali Police Station and they were referred to Makupa Police Station. in conclusion PW1 said that she had sex with Juma in the presence of John, on the same bed. Juma is on the dock. 10. On cross-examination by the accused person PW1 stated that she did not know the accused person prior to the morning of 23/1/2023 when she went to the market. PW1 said that she met Juma’s friend before she got to know Juma. She said that it was Juma’s friend who had requested her to go and visit him. PW1 said that she does not remember the name of Juma’s friend yet PW1 used to call him on phone. They had sex in the presence of Juma’s friend. 11. PW1 said that she spoke on phone with Juma’s friend and then left home by herself and went to visit Juma’s friend. She said she was more familiar with Juma’s friend. (note from trial court: court rules the demeanor of the witness; she is not forth right). PW1 continued on cross examination and said that when met at Sports, the accused person introduced himself as John. She said that she got to know that the accused person is called Juma at Makupa Police Station. It was the police woman who told her that his name is Juma and not John. She said that they had sex with the appellant while his friend was also on the same bed. She said that when she left home she was going to ask for the accused person’s friend. 12. On re-examination PW1 stated that the accused person was known to her as John. She identified Juma to her mother. Her mother identified Juma to the police. She said that the offence occurred in the presence of Juma’s friend but she did not identify him for the police to record the same. She did not give the police his number and she told the police that she had sex with John. The name Juma was given to her by the police and accused was identified by her mum. 13. PW2 Sadik K. Nyawa a clinical officer from Nairobi Women Hospital Mombasa said that the victim was seen on 15/2/2023 at 6.pm. PW2 said that the victim was 16 years old at the time. She had a history of sexual assault by somebody known to her. on examination her hymen was broken, she had whitish discharge. No blood seen. She had yeast infection and no spermatozoa seen. The p3 form and PRC form were filled on 15/2/2023. 14. The doctor concluded that the patient was defiled. PW2 said that in his experience infection can be transmitted through sexual contact and even exposure to micro-organism. PW2 said that one cannot tell whether hymen was broken. The treatment notes were produced as PEX-1 lab results as PEX-2, PRC form as PEX-3 and P3 form as PEX-4. On cross-examination he said that spermatozoa were seen, there was slight bleeding but he could not tell whether she was on periods. 15. PW3 IP Charles Wanjohi from Makupa Police station stated that on 4/3/2023 at 3.00pm, he conducted identification parade which involved the accused person. He said that he told him about the proceedings. She identified the suspect 3 diffenrent times. The suspect was the accused. He said that he was satisfied with the way the parade was conducted. The parade had 8 members. He changed positions 3 three times. He produced the identification parade form as PEX-1. 16. PW4 CPL Nelly Maigu attached at Makupa Police Station stated that he is the investigating officer in this matter. On 15/2/2023 the minor was brought by her mother. She reported defilement. It is said to have occurred at [Particulars Withheld]i. PW4 said that he accompanied them to Nairobi Women hospital where the minor was examined, p3 and PRC form filled. 17. PW4 said that on 4/3/2023 he was led to Kongowea market to arrest the accused person who was identified by the complainant and her mother. They went to the crime scene and they found the house closed but they got information that the house belongs to Mumba. PW4 said that the accused and the https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4929/eng@2026-04-16 3

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victim knew each other as they had a love relationship. PW4 produced the birth certificate as PEX-5. On cross- examination PW4 stated that the incident happened on 23/1/2023 and it was reported on 15/2/2023. Defence case 18. DWI Juma Mnyika the accused person testified under oath that he stays in Changamwe. He is a mechanic. He denies the charges. Dw1 said that on 4/3/2023 he was in the market buying groceries. He stated that he was arrested while going home. Analysis and Determination 19. The duty of this court as a first appellate court is well settled in the case of Okeno v Republic [1972] EA 32 at 36 where the court held that: “ ….an appellant on a first appeal is entitled to expect the Evidence as a whole to be submitted to a fresh and exhaustive examination (Pandya v Rep [1957] EA 336 and to the appellate court’s own decision on the Evidence. The first appellate must itself weigh conflicting evidence and draw its own conclusions. (Shentilal M. Ruwala v R [1957] E.A 570. It is not the function of the first appellate court to merely scrutinize the Evidence to see if there was Some evidence to support lower court’s findings and conclusions, it must make its own findings and draw its own conclusions. Only then can it decide whether the magistrate’s finding should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing witnesses, See Peters v Sunday [1958] E.A 424.” 20. Section 8 of the Sexual Offences Act, 2006 is captured in the following terms in creating the offence and punishment for defilement; “ 8. 21. Defilement 1. A person who commits an act which causes penetration with a child is guilty of an offence termed defilement. 2. A person who commits an offence of defilement with a child aged eleven years or less shall upon conviction be sentenced to imprisonment for life. 3. A person who commits an offence of defilement with a child between the age of twelve and fifteen years is liable upon conviction to imprisonment for a term of not less than twenty years. 4. A person who commits an offence of defilement with a child between the age of sixteen and eighteen years is liable upon conviction to imprisonment for a term of not less than fifteen years.” Section 11 (1) of the Sexual Offences Act provides for the offence of an indecent act with a child in the following terms; “ 11. Indecent act with child or adult https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4929/eng@2026-04-16 4

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(1) 22. Any person who commits an indecent act with a child is guilty of the offence of committing an indecent act with a child and is liable upon conviction to imprisonment for a term of not less than ten years.” The crucial elements that need to be proved for a crime of defilement to be inferred can be drawn from the wording of Section 8 of the sexual offences Act. The prosecution needs to prove beyond reasonable doubt that; i. There was an act which causes penetration (of the victim’s genital organs by the accused’s genital organs) ii. The age of the victim (must be a child) iii. Positive identification of the accused as the person who committed the act. Penetration 23. Section 2 of the Sexual Offences Act defines it as the partial or complete insertion of the genital organ of a person into the genital organs of another person. In this case, the P3 form indicates that the victim had a history getting lost from home and staying at 2 boyfriend’s place with penile penetration into her vagina. On examination her hymen was broken with old scar. This clearly indicates that the minor had sexual intercourse. 24. In the case of Bassita Hussein vs Uganda, supreme Court Criminal Appeal no. 35 of 1995, the court held: “ the act of sexual intercourse or penetration may be proved by direct or circumstantial evidence. Usually, the sexual intercourse is proved by the victims over evidence and corroborated by medical evidence or other evidence.” 25. In the above foregoing, I find that the evidence on record is sufficient to prove the element of penetration. I affirm that penetration was proved beyond reasonable doubt. Age of the victim 26. Proof of age is important in a sexual offense. In Kaingu Kasomo v Republic, Criminal Appeal No. 504 of 2010 (UR), the Court of Appeal stated that: “ Age of the victim of sexual assault under the Sexual Offences Act is a critical component. It forms part of the charge which must be proved the same way as penetration in the cases of rape and defilement. It is therefore essential that the same be proved by credible evidence for the sentence to be imposed will be dependent on the age of the victim.” 27. The record shows that the birth certificate of the complainant indicates that she was born on 3/1/2007 which meant that the victim was 16 years on the day of the alleged defilement. This court agrees with the trial court that the age of the victim was sufficiently proved beyond reasonable doubt. Positive identiffcation of the assailant 28. PW1 stated that she had sexual intercourse with the accused person on 23/1/2023 where she spent two nights at the appellant’s place. She said that the incident took place at the appellant’s home. She https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4929/eng@2026-04-16 5

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spent the third night at her friend’s place and the pastor took her back home on the fourth night. Her mother did not ask her anything. 29. The complainant said that, the next Saturday her mother took her to school where the principal enquired about the issue and thereafter he reported the same to Nyali police station. The OCS advised them to report the matter at Makupa Police Station. The minor was taken to the hospital on 15/2/2023 when the matter was reported to the police. Three weeks after the incident. 30. In her testimony the complainant describes the accused person as her boyfriend. She seems to change her story on cross-examination when she says that she met the accused person on the date of the defilement. She stated that she knew him as Juma through the police woman. The complainant said that the accused person was identified by her mother. She said that she was more familiar with the accused person’s friend. She stated that she knew the accused person through his friend whom she had gone to on 23/1/2023. She could not remember the name of the friend despite them communicating via the phone. 31. PW4 stated that it is the complainant and her mother who identified the accused person to him before the arrest. He visited the crime scene and got information that the house belongs to Mumba and not the accused person. The I.O conducted an identification parade but it is not clear why the investigating officer felt that they needed an identification parade. The accused person had already been identified at Kongowea Market and he was in custody thus the identification parade was an academic exercise. 32. The P3 form on record, at Part II, shows that the complainant had a history of getting lost from home and staying at 2 boyfriends place with penile penetration into her vagina. The initial treatment notes show that she was called by her boyfriend Tonny and they went to his house in BUXTON. I note with great concern that the story by the victim kept changing. from being called by Tony and going to his house, to having a boyfriend whomshe visited, to being taken to the house of the accused person and meeting him for the first time. 33. I find that the only person who witnessed the incident is the minor and the alleged perpetrator. In this case the evidence of the minor is not concrete nor credible as to the circumstances surrounding the offence. This evidence is to does not point at the appellant being the one who penetrated the minor. The prosecution has failed to prove beyond reasonable doubt that the appellant is the one who penetrated the minor. it was unsafe to rely on the evidence of a witness whose evidence kept swaying with the wind. one must always bear in mind the standard of proof never changes even i defilement cases. 34. Having failed to prove the last limb of the offense, I find that the prosecution failed to prove their case to the required standard and therefore the appellant’s appeal is merited and the appeal allowed. The conviction is quashed and the sentence set aside. 35. Consequently, the Appellant is hereby set at liberty unless otherwise lawfully held. 36. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY THIS 16TH DAY OF APRIL 2026. WENDY KAGENDO JUDGE In the Presence The Appellant in person Mr Sirima for the State https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4929/eng@2026-04-16 6

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Bebora Court Assistant SIGNED BY/FOR: HON. LADY JUSTICE WENDY MICHENI THE JUDICIARY OF KENYA MOMBASA HIGH COURT HIGH COURT CRIMINAL Date: 2026-04-16 17:38:01 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4929/eng@2026-04-16 7

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